The Pros And Cons Of Net Neutrality Laws

The net neutrality laws that require an ISP to “post,” or “send,” or allow “access” to any content of the subscriber's choosing, are, for all practical purposes, compelled access mandates akin to the Florida right to access statute at issue in Tornillo (Travis, 2006). Even though these mandates do not literally "restrict" an ISP from publishing content of its own choosing, they would compel the ISP to convey or make available content that, in its editorial judgment, it would otherwise choose not to convey or make available. Net neutrality advocates sometimes suggest that today's major broadband ISPs choose to be mere conduits, so that compelled neutrality would not eliminate any editorial function that the ISPs are now performing. ISPs like

Thus, it is inaccurate to suggest that ISPs are not presently functioning as "speakers" in the sense of those traditionally within the ambit of First Amendment protection. Even in the digital ase, computer storage capacity, data processing capabilities, and transmission capacity are not unlimited or costless resources. To the extent an ISP is required to carry more content and applications than it otherwise might choose if it could exercise its editorial discretion, there will likely be a financial impact on the ISP. Specifically, costs will rise due to the increased storage, processing, and transmission capacities necessary to meet new carnage requirements. Contrary to the apparent belief of some net neutrality proponents, ISP network resources are not "free" goods. By requiring an ISP to carry content it would prefer not to carry, net neutrality laws impose costs that may force the ISP to forego carrying other content it would prefer to make

In a world where real costs are associated with such components and resources, compelled access forces the ISP to make editorial decisions about the carrying of other content that the ISP otherwise would not have to make. In its most stark, and albeit, least probable form, a mandate—all the net neutrality proposals contain them—that prevents an ISP from "blocking" access by its subscribers to any lawful website would mean that the ISP could not choose to restrict access to material that in its view, say, is "indecent" or "homophobic" or, say, "unpatriotic" simply because it did not wish to carry such content. Indeed, recall the provision in the draft version of the Senate Commerce Committee bill stating that "no Internet service provider engaged in interstate commerce may limit, restrict, ban, prohibit, or otherwise regulate content on the Internet because of religious views, political views, or any other views expressed in such content unless specifically authorized by law." The intent to restrict the ISP's freedom to